Types of Patent Applications in Australia

Securing intellectual property protection is a fundamental step for innovators across all sectors. Australia offers a variety of patent application pathways, each serving a specific purpose and providing different levels of benefits, and limitations. Understanding these options is essential for selecting the filing strategy that best aligns with the nature of the invention, is key to protecting the invention and maximizing its commercial potential.

Provisional Patent Application

A provisional patent application is an optional but highly recommended first step in the patenting process. It serves as a cost-effective mechanism for establishing an early priority date, which becomes critical for any subsequent standard or international patent applications filed within the following 12 months. This early priority date can determine the outcome of competing filings and disputes over who first invented the technology.

Filing a provisional application also confers a “patent pending” status, which can be a valuable strategic asset. This allows the inventors to confidently disclose their invention to the public, engage with potential investors, and test the market without compromising their future patent rights. The 12-months period allows further refinement, development or testing of the invention, by conducting further research, and assessing commercial viability of the invention before deciding whether to proceed with filing a standard patent. A provisional application does not grant any enforceable patent protection on its own. It operates merely as a temporary placeholder that will lapse after 12 months if a complete patent application is not filed.

Standard Patent Application

A standard patent application is the primary method for securing long-term, legally enforceable protection for an invention in Australia. Once granted, a standard patent provides exclusive rights, allowing preventing others from making, using, or selling it without your permission for up to 20 years (or extendible to 25 years for certain pharmaceutical substances), subject to renewal fees. To be granted, an invention must meet statutory requirements of novelty, being useful, and having an inventive step, i.e., the invention must be a significant and non-obvious improvement over existing technology.

Filing a standard patent application directly without a provisional application poses certain risks. When a standard patent is filed, the protection received is fixed to the invention described in the initial application. If the invention is refined or modified after the filing date, those new developments will not be covered by the original patent application. By first filing a provisional application, the Applicant has a flexibility to add new features or improvements to the invention during the 12-month period and include them in the final standard patent application, securing a later priority date for the newly added features.

Innovation Patent Application (Phased Out)

For many years, innovation patent provided a different pathway to protection in Australia. It offered a streamlined, cost-effective protection lasting up to eight years and requiring a lower threshold of inventiveness. This made it a particularly attractive option for small to medium-sized businesses and inventors with inventions that had a short market life or represented a smaller technological advancement. For example, it was well-suited for innovations that used existing materials in a novel way without a substantial inventive step.

However, since August 25, 2021, the innovation patent system has been phased out in Australia. This decision was made to better align Australia’s intellectual property laws with international standards and to promote genuine, high-level innovation.

The Patent Cooperation Treaty (PCT)

For inventions having a global demand and reach, Patent Cooperation Treaty (PCT) provides a centralized mechanism for seeking patent protection simultaneously in over 150 member countries, including Australia. The PCT simplifies the initial process of filing patents in multiple jurisdictions. Administered by the World Intellectual Property Organization (WIPO), a PCT application allows the Applicant to file a single “international” application that establishes a filing date in all member countries simultaneously.

The PCT application streamlines the administrative process and delays the significant costs of filing in individual countries. It provides a standardized international search report and a written opinion on the patentability of the invention, which gives a strong indication of whether the invention is likely to be patentable in different countries. This information is invaluable for making informed decisions about which specific countries to pursue for national patent protection.

However, it is crucial to understand that a PCT application does not, by itself, grant you a patent. It simply reserves the Applicant’s right to pursue patent protection in member countries for up to 30 or 31 months from the initial filing date (usually the provisional application date). After this international phase, the Applicant must enter the “national phase” by filing separate applications in each country or region where the Applicant wants a patent to be granted.

How Can We Help You Succeed?

The patenting journey, from initial idea to granted patent, is filled with critical decisions and complex legal requirements. Choosing the right type of application is a strategic decision that can impact the invention’s long-term success. Obtaining a patent involves complex legal, technical, and procedural considerations, and every stage, from selecting the appropriate type of application to drafting the specification, has long-term consequences for the strength and commercial value of the resulting rights. Our firm provides comprehensive support throughout this process, ensuring that each application is strategically prepared, legally robust, and aligned with the innovator’s commercial objectives.

Our services include advising on the most suitable filing pathway (provisional, standard, PCT), preparing high-quality patent specifications, drafting claims with precision, and capturing all relevant embodiments to maximize the scope of protection. Our firm conducts detailed reviews of the invention, identifies potential prior art issues, and ensures that inventorship, ownership, and disclosure history are accurately addressed to support validity and enforceability.

During prosecution, our firm manages all correspondence with IP Australia and WIPO, responds to examination reports, prepares amendments where necessary, and handles national-phase entries for international applications. Our firm also provides long-term portfolio management including renewal monitoring, strategic filing advice, and guidance on commercialization options such as licensing, assignment, and enforcement.

Through this end-to-end approach, our firm ensures that each invention is protected to the highest possible standard and that the resulting intellectual property supports both immediate and future commercial goals. By partnering with us, you can focus on what you do best, i.e. innovating, while we handle the intricate legal and procedural aspects of protecting your intellectual property.

Contact us today for a free consultation.